1. MUHAMMAD HALEEM, .J.-- This appeal, by leave, arises from the judgment of the Lahore High Court, Lahore, dated 10th June, 1975, by which Writ Petition No. 88-R of 1975 was dismissed.
2. Leave to appeal was granted to consider the question whether the entitlement of the appellant for transfer of the building site could only be determined with reference to paragraph 13 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as "the Act"), or should it further conform to the condition in the Settlement Scheme that the built-up area should be l 1/4th of the size of the plot.
3. The appellant herein was in possession of Plot No. 95 in Block No. 23, Sargodha City. He raised a Pacca construction thereon and applied for its transfer under Settlement Scheme No. VI as a building site. In the column of the form relating to the constructed area, he mentioned two built-up rooms, measuring 11 --x 16 and 9 x 13. This plot was surveyed and the document titled "Survey of Evacuee Building/ Sites and Plots" incorporating the details is in the Settlement record. The type of the structure is described therein as pacca and area of the plot as 1,469 sq. Ft. On the back of this document two rooms are mentioned measuring 17 x 12 and 9 x 12 respectively.
4. The building site was inspected by a Settlement Inspector of the Department. In his report, he has not stated anything about the nature of the construction but only mentioned that the covered area of the site was 1/6th of the total area, and, therefore, it was not transferable under Settlement Scheme No.VI, and, therefore, should be included in the auction list and the application be rejected.
5. On this report, the Deputy Settlement Commissioner rejected the form holding; firstly that the construction did not conform to the legal requirement as to the nature of the material used in the constructions in the vicinity; and, secondly that the constructed area was less than the 1/4th of the size of the plot as required by the Scheme. Having rejected the form he directed the plot to be auctioned by order dated 18-9-1960.
6. The appellant appealed to the Additional Settlement and Rehabilitation Commissioner, Sargodha, who rejected it on the same ground by order dated 30-9-1960. The appellant filed a revision against this order on 5th of July, 1961, before the Settlement Commissioner, who dismissed it on the sole ground of limitation while mentioning in the order that it is now difficult to say that the appellant had "no good case" for interference by order dated 29-6-1962.
7. The appellant thereupon challenged this order through Writ Petition No. 1526-R of 1962, which was dismissed by order dated 9-12-1965 on the ground that although there was no limitation prescribed for preferring a revision yet section 20 (3) of the Act gave discretion to the revisional authority "to take into consideration any laches of which the petitioner may have been guilty".
8. Further that if the appellant was "indolent" by sleeping over his rights by inordinate long period, there was no reason to interfere with the exercise of discretion. Against this Judgment the appellant preferred Letters Patent Appeal and succeeded as the case was remanded by order dated 22-5-1973. The operative part of the order is as under: "The appeal is accepted; the order of the learned Judge in Chambers is set aside and the order of the Settlement Commissioner dated the 29th of June, 1962 is declared as without lawful authority with the result that the revision-petition filed by the appellant shall be deemed to be pending before the Settlement Commissioner, who will proceed to dispose of the same in accordance with law."
9. On remand, the Settlement Commissioner heard the counsel for the parties and held as under: "After hearing the arguments of the learned counsel for both the parties I have come to the conclusion that irrespective of the facts that the revision petition has been filed by the present petitioner such late, his entitlement for the transfer of the plot is still doubtful due to the fact that 1/4th construction of the prescribed date was pre-requirement under the mandatory provision of Settlement Scheme No. VI. The learned DSC and Additional Settlement Commissioner have already held that the construction was less than 1/4th and particularly when the plot his further been disposed of in open auction in favour of the respondent his right to this property have validly been proved. Moreover the auction proceedings have not been challenged by the petitioner before appellate or revisional jurisdiction. With all these observations I am convinced that the petition merits be dismissed on the ground of laches inasmuch as the petitioner did nothing for nine months after obtaining the order. Even on merits the petitioner has no case. It is concurrent findings of the Courts below that the construction on plot is less than 1/4th and the petitioner has not been able to rebut these facts. The revision petition is therefore dismissed."
10. It is eminent from the order that the laches was not the sole consideration for the dismissal of the revision, but also reason that the construction on the plot did not fulfil the requirement of the condition namely, as to its not being 1/4th of the size of the plot as required by Settlement Scheme No. VI. Laches was taken into consideration as during the interregnum the auction-purchaser has intervened as a result of the auction of the plot which remained unchallenged.
11. Against this order, the appellant again preferred writ petition No. 88-R of 1974, which met the same fate. It was contended before the High Court on the authority of this Court's decision in Mst.
12. Mahmooda Tahsin's case that the entitlement should have been determined in accordance with para. 13 of the Schedule to the Act and not with reference to the definition of "permanent building" while on the other hand the respondent contended that para. 13 of the Schedule did not define as to what was a permanent building, and, therefore, the definition of permanent building in the Scheme would be a valid criterion for determining the entitlement of the appellant as it owed its validity to section 16(1) (b) and (c) of the Act. And further that as the Scheme was considered in the case reported as H.M. Abbasi v. Haji Muhammad Usman and others 1968 SCMR 451, nonetheless the requirement was not held to be in conflict with para. 13 of the Schedule. The High Court without distinguishing the earlier decision of this Court merely held that "the authority stated by the learned counsel for the petitioner has been referred in the said authority", and concluded that the case of the petitioner was not covered by para. 13 of the Schedule, and, therefore, he was not entitled to the transfer of the disputed building site. Additionally, the High Court also held that a Permanent Transfer Deed (PTD) had been issued in favour of the contesting respondents on 14-6-1966 which held the field. The inference, therefore, drawn was that the auction not having been challenged, the transfer had assumed finality by the issuance of the PTD.
13. A serious question has arisen by the leave granting order as to the interpretation of this Court's observations in Mst. Mahmooda Tahsin v. S.Ijaz Hussain Shah PLD 1965 SC 618 vis-a-vis the observations of this Court while interpreting this decision in H.M. Abbasi's case. It would, accordingly, be pertinent to refer to the facts in Mst. Mahmooda Tahsin's case. What turned out on the facts was that adjacent to her house on Mission Road, Lahore, there was an evacuee plot 10 Marlas and 3 sqr. Feet in area. She built a garage and a room on a part of the plot which was also occupied by other persons. Her possession was only to the extent of the built-up area. She applied to the Settlement Authorities for the transfer of the whole plot on the basis that she had built a covered area equal or more than the 1/4th of the plot, and, therefore, she was entitled to the transfer of the whole plot in accordance with para. 13 of the Schedule to the Act read with the definition of a "permanent building" in Settlement Scheme No.VI. But before any order was passed on her application, the plot was auctioned on 15th of July, 1961. She thereupon moved the Deputy Settlement Commissioner praying that the auction may not be confirmed till her application was disposed of. The Deputy Settlement Commissioner submitted a report on this application to the Additional Settlement Commissioner in which he stated that she had built a Pacca garage, a shed and a small room and that the area covered by the constructions was 1/4th of the total area and hence she was entitled to the transfer of the whole plot on payment of the prevailing market price plus fifty per cent in accordance with para. 13 of the Schedule. The Additional Settlement Commissioner, however, did not agree with it and upheld the auction on the ground that the plot did not fall under Scheme No. V I .
14. On these facts, this Court came to construe para. 13 of the Schedule and the extent to which the provisions of the Scheme controlled it. It will be noticed from the consideration of two sets of these provisions that this Court held: firstly, that it is the Schedule and not the Scheme that is to be looked at for the determination of the rights of the person seeking its transfer and further that the Schedule only lays down two prerequisites for the transfer, that is, the building site should be in an unauthorised possession of the person and that he must have raised a permanent building on it, in the ordinary sense of the expression; secondly, that the definition of "permanent building in the Scheme adds a number of limitations to the ordinary meaning of the expression "permanent building" which cannot be pressed into service to either reduce or enhance the right of a person to the transfer of the land which has to be determined in accordance with the Schedule without reference to its definition in the Scheme; and, thirdly as to plot not being a building site was not a valid consideration in terms of para. 13 of the Schedule. Upon this interpretation, this Court held that as there is no definition of "permanent building" in para. 13 of the Schedule, any person who has raised a permanent building; in the ordinary sense of this expression, on a piece of land in his unauthorised possession is entitled to its transfer to the extent of the covered area of the plot subject of course, to the transfer of any necessary rights for a passage or other easement which are essential to the enjoyment of this property.
15. This decision was subsequently followed by this Court in Fazal--ul-Haq v. Said Muhammad and others 1968 SCMR 113 and Niaz Din v. S.M. Azhar and others 1969 SCMR 221. In the first case the built-up area was less than 1/4th of the size of the plot, and his entitlement was denied by the Settlement Authorities, but the case was remanded for the determination of his entitlement afresh as it was wrongly rejected on the alleged non-fulfilment of the conditions laid down in Scheme No.VI. It was, however, held in this case that the rights of the appellant would be confined only to the area in his actual possession. This observation followed the earlier dictum that para. 13 of the Schedule only entitled the person to retain the land in his possession on which the building was raised. In the second case again the dictum laid down in Mst Mahmooda Tahsin's case was followed and it was held that the person entitled to the transfer of the building site under Settlement Scheme No.VI should be in possession of the site and the transfer in his favour would be confined to what he actually occupied. And in that regard the policy of law was obvious as the person in unauthorised possession of a building site was liable to be ejected as a trespasser from the building site, but since he had constructed a permanent building thereon, he was only eligible to purchase the site in the interest of rehabilitation to the extent of the covered area.
16. PLD 1971 SC 252, Mr.M.R. Khan, J., in his dissenting opinion referred to the case of Mst. Mahmooda Tahsin, and held that para. 13 of the Schedule created a right in favour of the person in unauthorised possession of the land to its transfer to the extent of the area covered by him.
17. 1980 SCMR 411, the plot measured 600 Sq. Yards and under the rules relating to the division of plots, the plot was divisible into two parts. The contending claim was that on one of the plots permanent construction stood on 220 square yards and that on that basis the person was entitled to the transfer of the whole plot. It was held that there was nothing in the Act or the Schemes forbidding the division of the plot, and therefore, if it was divided into two parts, it was not only strictly in accordance with the law, but also, in fact, the more appropriate course to be followed as it accommodated two persons consistent with the object of the Act. Or these facts the dictum laid down in Mst. Mahmooda Tahsin's case was distinguished. There was, therefore, no modification or variation of the ratio decidendi in the case of Mst. Mahmooda Tahsin. It would thus appear that the dictum laid down in Mst. Mahmooda Tahsin's case was consistently followed by this Court, and, therefore, there was no uncertainty or doubt as to the principle to be applied for the transfer of a building site in accordance with para. 13 of the Schedule.
18. 1968 SCMR 451, which was a petition, the entitlement of the appellant was denied at the final stage by the Settlement Authorities on the ground that his construction did not qualify for a "permanent building". In this regard there was difference of opinion between the Deputy Settlement Commissioner who held that it should be classed as "permanent building" while the Executive Engineer in his opinion stated that the construction was much below the specification and could not, therefore, be classed as "permanent building". The respondent thereupon challenged the denial of his entitlement in the High Court through a writ petition which was allowed by a learned single Judge who directed the transfer to him of the plot in accordance with Settlement Scheme No. VI. H.M. Abbasi felt aggrieved as he was transferee of the plot and filed a Letters Patent Appeal, but did not succeed as the Letters Patent Bench held that the construction satisfied the requirement of a "permanent building". This Court was of the view that the construction in question clearly qualified as a "permanent building" under Scheme No. VI and the reasons put forward by the Settlement Authorities for denying the entitlement were clearly colourable. The other point established was that the covered area was 1/4th of the size of the plot which also satisfied the definition of a "permanent building". As to the observations of the High Court striking down all other requirements in the different categories of the definition of "permanent building" contained in the Schedule, this Court held: "With respect, that is not how that judgment is to be interpreted, but for this case, no such extended interpretation is requisite."
19. The above statement cannot be interpreted to mean a departure from the rational of Mst.
20. Mahmooda Tahsin's case as to determination of the entitlement in accordance with para. 13 of the Schedule as the construction was held to be a permanent building in the ordinary sense of the term. What is meant is that anything not inconsistent with para. 13 of the Schedule could not be struck down as against the view of the High Court as to the import of the judgment in Mst.
21. Mahmooda Tahsin's case. Further such an extended interpretation was not called for as the entitlement satisfied both the requirements of the Scheme and para. 13 of the Schedule.
22. Para 3 (c) of Chapter I of the Scheme was held to be in conflict with para. 13 of the Schedule in Mst.
23. Mahmooda Tahsin's case, that is, the nature of the permanent construction not otherwise in the ordinary sense of the expression and the requisite area to be covered as necessary for the entitlement. Para 3 (d) also would be hit if the Chief Settlement Commissioner were to declare any other construction or class of construction as a permanent building as against the meaning of the "permanent building" in the ordinary sense. This is so because the provision of the Act prevails over the Scheme and no such limitation can be read into it.
24. Further the proviso to para. 3 of the Scheme empowers the Deputy Settlement Commissioner to add an area not exceeding thrice the area comprised in the permanent construction, and to transfer it to 1 the occupants according to the prescribed terms and disposing of the rest through unrestricted auction. This proviso is an exception to para. 3 (c) of the Scheme in so far as the condition of the total area', to be covered as a condition precedent for the transfer of the plot. In effect, therefore, it permits the transfer of the actual built-up area which is in accord with the language of para. 13 of the Schedule. Accordingly, it is always open to the Settlement Authorities to transfer any portion of the plot which is intended for the beneficial enjoyment of the constructed area.
25. Now coming to the facts of the instant case, it was not disputed that the appellant was in an unauthorised possession of the plot, and had raised a Pacca construction about which he had stated in the form for the transfer of the building site. Equally the type of the structure was described in the "Survey of Evacuee Building/Sites and Plots" as Pacca and the measurement of the rooms was shown as 17 x 12 and 19 x 12 although in the application for the transfer of the building site the measurements were given as 9 x 13 and 11 -- x 16. The inspectionreport of the Settlement Inspector did not disclose the nature of the construction and all that was stated was that the covered area of the construction was 1/6th of the total area, and, therefore, it was not transferable under the Scheme. The Deputy Settlement Commissioner not only gave that reason but also stated, while rejecting the form-1 that it did not conform to the legal requirement as to the nature of the material used in the construction in the vicinity This was not a valid determination in accordance with para. 13 of the Schedule as neither of the considerations, taken singly or jointly, could deprive him of his entitlement. In this view of the matter, the observations in Mst.
26. MahmoodaTahsin's case were fully applicable to the facts of this case. This being so the property could not be available for auction and if it was, in fact, auctioned it did not create any right to the transfer in favour of the auction-purchaser.
27. Moreover, it is interesting to note from the Settlement record that the appellant had challenged the auction on the ground that Khair Din who had given the bid had died earlier and someone else impersonated him. On the bid-sheet there is the thumb-impression of the person giving the bid and not his signatures. Masita, the son of Khair Din, was examined by the Deputy Settlement Commissioner on 7-1-1964, who stated that his father had died in 1956 and that he had given the bid and signed the bid-sheet on behalf of his father. The auction was also confirmed in the name of Khair Din. I am unable to comprehend as to how this auction can be valid and binding if the bid was given not by Khair Din but someone impersonating him. It is also not correct to say that the appellant had not challenged the auction before the Settlement Authorities in favour of Khair Din.
28. Be that as it may, as the property was not available until the entitlement of the appellant was determined in accordance with law, the building site could not be auctioned. In this view of the matter, both the Settlement Commissioner on the remand of the case and the High Court fell into an error in upholding the auction and rejecting the entitlement of the appellant not only on the ground of laches, but also on merits.
29. Accordingly, it is not a case where the appellant could be said to have waived his right in favour of the auction-purchaser, but one in which there was a denial of his entitlement per se. Therefore, even if Permanent Transfer Deed (PTD) had been issued it did not confer any rights on the auction- purchaser as not only it was issued during the pendency of the proceedings, but also because the property was not available for auction apart from the flaw in the auction itself. The High Court further failed to comprehend the rationale of the principle laid down in Mst. Mahmooda Tahsin's case when it noted in the judgment that this case was considered in H.M. Abbasi's which case too was not properly considered, and if the case had been read in depth, it would have become obvious that the earlier dictum still held the field.
30. The appeal is allowed with costs.